The Supreme Court showdown over the conviction of former Virginia Gov. Bob McDonnell has done something quite rare in Washington these days: enticed Republican and Democratic politicians to make common cause.
As the justices prepare to hear McDonnell’s appeal on Wednesday, lawmakers, activists and advocates from across the spectrum have rallied to the former Republican governor’s defense, warning that federal prosecutors are wielding outsize control over the political system and seeking to criminalize the kind of routine meetings and perks that have long been arranged for donors.
The optics of McDonnell’s case are simply dreadful. He and his wife, Maureen, accepted more than $175,000 in gifts from businessman Jonnie Williams as he was seeking state help to promote a dietary supplement. Jurors who convicted McDonnell saw photos of the governor showing off a Rolex watch from the businessman and looking relaxed while cruising around in a Ferrari borrowed from Williams.
Despite all that, McDonnell has mustered an impressive and broad phalanx of support, ranging from former Obama White House Counsel Greg Craig to John Ashcroft and Michael Mukasey, who served as attorneys general under former President George W. Bush. Former Rep. Tom Davis (R-Va.) is on board with ex-Rep. Jim Moran (D-Va.), as are a slew of state lawmakers from both parties. Also in McDonnell’s camp are longtime political figures who see eye to eye on almost nothing, such as former NAACP chief Benjamin Jealous and former Rep. Michele Bachmann (R-Minn.).
“I don’t think it maps to the sort of traditional, left-right divide. That’s definitely the case,” said Dan Weiner of the Brennan Center, a left-leaning think tank, urging the court to uphold McDonnell’s conviction. “What you have on McDonnell’s side is a cross section of the so-called establishment, asking the court to adopt a particular idea of what politics is and what appropriate political conduct is.”
However, ethics watchdogs say those urging the court to be more accepting of situations in which politicians provide access and friendly perks to donors are badly out of step with the white-hot, anti-insider anger that has fueled the insurgent presidential campaigns of Donald Trump and Bernie Sanders.
“What’s extraordinary here is how out of touch that is in an election season where both the Democratic Party and the Republican Party are convulsed, so many people are going in saying what Bob McDonnell did is ordinary politics,” Weiner said. “What’s striking is how unreflective they seem to be about why we are where we are right now. … Comparing $175,000 in luxury gifts to a complimentary lunch or a plaque is surreal.”
Craig said he understands and even shares the public outrage about money buying influence in the political process but has weighed in on McDonnell’s side out of concerns about the basic fairness of bringing criminal charges based on a “very blurry” law — in this instance, the nebulous idea of what kind of “official act” is significant enough that it cannot be traded for gifts or political donations.
“I’m troubled by the role money plays in which, routinely, businessmen get special treatment from governors’ offices, [but] I don’t think people should go to jail by accident,” said Craig, who noted he represented Gov. Don Siegelman (D-Ala.) in another controversial case over an appointment to a state board linked to a large gift to a state lottery fund.
“In the McDonnell case, obviously the gifts they received are pretty offensive and, if you just looked at that, you’d think there’d be a presumption something was going on, but the [jury] instructions and the standard they had to apply in terms of ‘official act’ was vague and not clear. … Ninety-five percent of governors, senators and House members give contributors access every day. I’m not condoning that, but is that a quid pro quo?” Craig asked.
Craig said a ruling against McDonnell would raise legal questions about all kinds of favors that donors have traditionally received, including invitations presidents of both parties have extended to White House receptions, Christmas parties and the like. “I think it is an open question as to whether or not you’re coming close to the line,” he said.
The government’s brief filed with the Supreme Court says McDonnell’s interventions for Williams and his company Star Scientific went beyond invitations to social gatherings. The governor asked subordinates to encourage researchers at state universities to launch studies on Star Scientific’s product. Maureen McDonnell even hosted a launch party for the compound at the governor’s mansion, Solicitor General Donald Verrilli noted.
“It is not absurd to prohibit a White House scheduler from accepting a $5,000 payoff to secure a Rose Garden event or to bar a Cabinet secretary from auctioning off his official appearances to the companies willing to pay him the most,” Verrilli wrote.
While Bob McDonnell’s case triggers theoretical debates about the acceptable role of money in the political system, the impact for the former Virginia governor himself is very practical. He’s facing a two-year prison sentence that the justices halted while the case is resolved. His wife was sentenced to a year and a day. She is also free while the legal system acts on his appeal. Her own appeal is pending.
Many experts think Bob McDonnell’s chances of overturning his convictions have slipped with the death in February of Justice Antonin Scalia. “Scalia was a reliable vote in favor of the idea that policing this sort of thing is really just pointless,” Weiner said.
Another factor that could be fueling the strong and broad reaction in McDonnell’s favor from the political class is the number of politicians on each side of the aisle who have faced aggressive federal corruption investigations and prosecutions in recent years.
“They’ve known no party or ideological bounds,” said Hampton Dellinger, a former North Carolina deputy attorney general who is now a partner at law firm Boies, Schiller and Flexner. “It’s been a checkerboard.”
There are former Govs. Rod Blagojevich (D-Ill.) and George Ryan (R-Ill.), as well as Reps. William Jefferson (D-La.) and Rick Renzi (R-Ariz.). Many members of Congress remain personally steamed about the prosecution of the late Sen. Ted Stevens (R-Alaska), who lost the seat he held for 40 years before prosecutors acknowledged wrongdoing and asked that his conviction be overturned.
Among those watching the McDonnell case most intently will be some politicians currently under indictment, including Sen. Robert Menendez (D-N.J.) and Rep. Chaka Fattah (D-Pa.).
“Elected officials want to know what the rules are. Public service shouldn’t be a game of gotcha,” Dellinger said. However, he noted that in recent years, jurors have been pretty receptive to arguments about politicians perceived to be on the take.
While the support for McDonnell is unmistakably bipartisan, the small set of good-government groups backing the government also spans the spectrum, from the liberal Citizens for Responsibility and Ethics in Washington to the conservative Judicial Watch. Some groups fear that a ruling for McDonnell would take the flood of money unleashed by the Citizens United decision and allow a kind of free-for-all where politicians are completely unabashed about trading access and perks for large donations.
“If the court were to adopt [McDonnell’s] theory, it would take an already bad line of precedent and make it even worse,” Weiner said.
Tom Fitton of Judicial Watch said his colleagues at other conservative organizations are overreacting by predicting that typical interaction with donors would be in jeopardy if McDonnell’s conviction is upheld.
“I’m confused by the concern many have raised about the prosecution — [McDonnell’s conduct] was egregious. This wasn’t politics as usual,” Fitton said. “There was nothing he did that was regular. Those arguments were made to the jury and the jury found them wanting.”
Fitton said he fears that a ruling for McDonnell would mean fewer corruption prosecutions at a time there should be even more. “Government corruption is underprosecuted. The courts further constraining the statutes is going to lead to more unprosecuted government corruption,” he said.
While the number of briefs filed defending the McDonnell prosecution was dwarfed by the array of powerful figures weighing in to criticize the case, Dellinger said that imbalance may be countered by the clear weight of public opinion.
“You know who’s on the government’s side here?” he asked. “Voters.”
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